This is a blog about the use of emerging technologies to boost the governance of public procurement. It used to be a blog on EU law, with a focus on free movement, public procurement and competition law issues (thus the long archive of entries about those topics). I use it to publish my thoughts and to test some ideas. All comments are personal and in no way bind any of the institutions to which I am affiliated and, particularly, the University of Bristol Law School. I hope to spur discussion and look forward to your feedback and participation.

Reg.75 of the Public Contracts Regulations 2015 (PCR2015) establishes requirements for the publication of notices linked to the award of public contracts for social and other special services, in line with Article 75 of Directive 2014/24. As part of the light touch regime applicable to the procurement of these services, the transparency obligations that contracting authorities need to comply with are reduced and made more flexible under reg.75 PCR2015, both at pre-award and post-award phase. See Pedro's remarks here.

When it comes topre-award transparency, reg.75(1) PCR2015 gives contracting authorities a choice to advertise their intention to award a contract by means of either (a) a simplified contract notice, which shall contain the information referred to in part H of Annex V to Dir 2014/24; or (b) an enhanced prior information notice, which shall be published continuously (ie be made available throughout the period covered by the notice?), contain the information set out in part I of Annex V to Dir 2014/24, refer specifically to the types of services that will be the subject-matter of the contracts to be awarded, and indicate that the contracts will be awarded without further publication and invite interested economic operators to express their interest in writing.

Of course, as recognised by reg.75(2) PCR2015, contracting authorities can dispense with these requirements where a negotiated procedure without prior publication could have been used in accordance with reg.32 PCR2015. In my view, the two cases that are more likely to trigger controversy are the use of reg.32(2)(b) PCR2015 whereby contracting authorities may be tempted to argue that particular social or special services can be provided "only by a particular economic operator" particularly under reg.32(2)(b)(iii) PCR2015 on the basis of "the protection of exclusive rights", such as an act of entrustment, licence or authorisation to provide certain services; as well as reg.32(9) PCR2015 for the award of new services which repeat similar ones, which would try to cover a clear renewal of an expiring contract as an extension of the previous contract.

The first argument could be devised in situations where (local) contracting authorities intend to keep the provision on social or other special services local/in hands of the incumbent. In that regard, the authorities could be tempted to argue that the existence of a de facto local monopoly requires them to award the contract directly and without publicity because there is no alternative provider in the market. This would simply be a misunderstanding of the applicable rules and cannot be accepted. It is worth stressing that the CJEU has permanently stressed the strict requirements that control decisions to proceed to the direct award of contracts under this ‘non-procedure’, which are subject to a strict assessment of whether the contracting authority "acted diligently and whether it could legitimately hold that the conditions [for recourse to this procedure] were in fact satisfied" [Fastweb, C-19/13, EU:C:2014:2194 50]. Consequently, there is no doubt that this procedure must be understood as exceptional [C-292/07 Commission v Belgium [2009] I-59 106].

In a refined form, the (local) contracting authority may try to justify the direct award on the basis of any sort of "exclusive right" they can see as being held by the local provider. In that regard, the case law of the CJEU as to what constitutes an exclusive or special right will gain significant prominence [for discussion in relation to utilities rules under Directive 2014/25, see T Kotsonis, "The 2014 Utilities Directive of the EU: codification, flexibilisation and other misdemeanours" (2014) 23 (4) Public Procurement Law Review 169-187], and will likely result in the conclusion that the local provider does not hold an exclusive right that merits protection for the purposes of excluding competition in the award of the contract.

It is also worth stressing that the granting of such exclusive or special rights should have complied with fundamentally the same requirements in their award, which may make reliance on the apparent exclusivity equally illegal under EU law [see GS Ølykke, "Is the granting of special and exclusive rights subject to the principles applicable to the award of concessions? Recent developments in case law and their implications for one of the last sanctuaries for protectionism" (2014) 23 (1) Public Procurement Law Review 1-20]. Moreover, contracting authorities need to keep in mind the very high threshold imposed by the last caveat of reg.32(2)(b), which stresses that recourse to direct award under the argument of protection of exclusive rights can only take place "where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement".

The second argument, based on the direct award of a contract for new services which repeat similar ones under reg.32(9) PCR2015 could be particularly tempting on a "second round" of award initially based on the reservation allowed for under reg.77 PCR2015 (commented in due course). The scenario would be as follows: a (local) contracting authority awards a "reserved contract" to a preferred non-profit qualifying organisation under reg.77 PCR2015. The contract is for 3 years [reg.77(4)] and foresees the possibility to resort to the additional services clause under reg.32(9) PCR2015--which in itself, and strictly speaking, may not be a breach of reg.77(4) PCR2015, but this promises to be highly contentious due to the exceptional nature of the reservation rules (and, in my personal view, should not be allowed to begin with).

When the first 3-year period is over, the contracting authority effectively resorts to the possibility to directly award a contract for the same/similar services for another 3 years [or three times, consecutively, for 1 year, or any other combination of contract durations up to the 3 year limit established in reg.32(12) PCR2015]. In my view, this would be a circumvention of the exceptional circumstances that are covered by reg.77 PCR2015 and would amount to an infringement of reg.18(2) PCR2015 / Art 18(1) Dir 2014/24.

Consequently, overall, I would stress that the reference to reg.32 PCR2015 and the possibility to enter into directly-awarded contracts for social and special services should fundamentally be disregarded by contracting authorities if they want to avoid risks of legal challenge, unless very clear grounds exist and they can make sure that the lack of competition in the market / existence of exclusive rights is not a situation they created themselves (in contravention of EU law).

Post-award transparency is also flexibilised. Generally speaking, the award of a contract for services covered by reg.74 PCR triggers the obligation to make known the results of the procurement procedure by means of a contract award notice, which shall contain the information referred to in part J of Annex V to Dir 2014/24 [reg.75(3)] and be sent for publication in compliance with reg.51 PCR2015 [reg.75(5) PCR2015]. Contracting authorities may, however, group such notices on a quarterly basis, in which
case they shall send the grouped notices within 30 days of the end of
each quarter [reg.75(4) PCR2015]. My hunch is that quarterly publication will become the norm, which is not a bad thing.